​CONTINENTAL DIVIDE TRAIL SOCIETY[1]July 16, 2016Comments on Scoping Document (May 2016), Shoshone National Forest Travel Management The Continental Divide Trail Society, established in 1978, welcomes this opportunity to comment on the Scoping Document for travel management in the Shoshone National Forest (81 Fed.Reg. 33655, May 27, 2016). We do so in accordance with our mission, which is “to help in the planning, development, and maintenance of the CDT as a silent trail and to assist users plan and enjoy their experiences along the route.” We have participated in other planning activities of the Forest including, most recently, its revised Land Management Plan. Our comments are directed to actions that may have a beneficial or detrimental impact upon the use and enjoyment of the Continental Divide National Scenic Trail (CDNST). We turn first to the scoping document statement of need “to consider if there are current routes with resource concerns or enforcement issues which could be removed or changed in the system.” (p.7) As discussed below, there is a need to change current routes to remove the CDNST from motorized roads or trails and to evaluate and define a course of action to accomplish this goal. The need to include in this endeavor provisions for the review of alternative reroutes was recognized by the Reviewing Officer for the revised land management plan, who stated:After review, and clarification by the SNF, we conclude that further analysis should be conducted in identifying proposed reroutes of the CDNST consistent with the 2009 Comprehensive Plan and FSM 2353.44b during site specific analysis… The CDNST is a congressionally designated trail and should have a thorough review of proposed reroutes through the SNF. (SNF LMP Revision/Objections Response/Attachment 2/page 49). We call attention to the Forest’s statement of “Changes to the Existing Situation from Proposed Action” [Table 1.]. We specifically address the second item, which reads as follows:[Purpose/Need] Identify current routes that have some existing resource concerns or enforcement issues which could be removed or changed in the system[Proposed Action] Converts 2.1 miles of road to a motorized trail (65 inch width) to reduce impacts on resource. (This action relates to Proposal SHO-02, currently a segment of the CDNST.) Further information is provided in Table 7 (Proposed Changes to Motorized Travel on the Wind River Ranger District), which identifies SHO-02 as being, at least in large part, on an old logging road, with “no resource issues to preclude allowing wider vehicles.” No mention is made that this travel route (motorized trail MT-10) coincides with the CDNST, nor is there any recognition that additional adverse impacts to enjoyment of the CDNST would preclude the authorization of motorized use by wider vehicles. In fact, not only would the CDNST resource preclude allowing wider vehicles, but the CDNST resource precludes any motorized vehicles here. We explain the basis for these observations below, along with our recommendation for changes that we consider to be appropriate. In addition, there is a need to remove the CDNST from other motorized roads or trails. This should also be recognized and addressed in travel management planning.* * * *Provisions of the National Trails System Act (NTSA) Regarding Motorized Use on the CDNST

The general rule with respect to use of motorized vehicles is as follows: NTSA Sec. 7(c) (16 USC 1246):

(c) National scenic or national historic trails may contain campsites, shelters, and related-public-use facilities. Other uses along the trail which will not substantially interfere with the nature and purposes of the trail may be permitted by the Secretary charged with the administration of the trail. … The use of motorized vehicles by the general public along any national scenic trail shall be prohibited. ….

An exception with respect to the CDNST is as follows: NTSA, also Sec. 7(c) (16 USC 1246):

Other uses along the … Continental Divide National Scenic Trail, which will not substantially interfere with the nature and purposes of the trail, and which, at the time of designation,[2] are allowed by administrative regulations, including the use of motorized vehicles, shall be permitted by the Secretary charged with administration of the trail.

A further exception applies to the use of motorized vehicles on system roads constructed prior to designation of the CDNST in 1978: NTSA, Sec. 5(a)(5) (16 USC 1244); 2009 CDNST Comprehensive Plan, IV.B.6b.

Accordingly, motorized vehicles (other than on pre-1978 roads) may only be permitted on the CDNST if (1) the use of such vehicles will not substantially interfere with the nature and purposes of the trail and (2) such use, at the time of designation, was allowed by administrative regulations.The “nature and purposes of the CDNST” are “to provide for high-quality scenic, primitive hiking and horseback riding opportunities and to conserve natural, historic, and cultural resources along the CDNST corridor.” (2009 CDNST Comprehensive Plan, IV.A.).Such permitted summer use is further defined in the 2009 Comprehensive Plan (IV.B.6) to prohibit motor vehicle use (with exceptions for emergencies, landowner access, and crossings) unless that use:

Is consistent with the applicable land management plan

Is designated in accordance with 36 CFR 212.51 (use … on National Forest System roads [or] trails… shall be designated by vehicle class …)

The vehicle class and width were allowed on that segment of the CDNST prior to November 10, 1978.

The use will not substantially interfere with the nature and purposes of the CDNST.

The Proposed Travel Management Plan Would Allow Motorized Vehicle Use by the General Public in Violation of the NTSA, Forest Service Policy, and the 2009 CDNST Comprehensive Plan and Therefore Needs to Be Changed A. The Shoshone National Forest (with the Bridger-Teton National Forest and the Rock Springs and Rawlins districts of the Bureau of Land Management) issued a decision notice selecting a “final route” for the CDNST from South Pass to Yellowstone National Park on February 27, 1998. This notice described the selected route by segment, including these two segments:

Northwest along Forest Road 540 to Pelham Lake; from there a new route is planned that will tie into the Pilot Knob Road [#537]. Some of this route includes existing, but unmapped routes. No more than .5 mile of new trail may have to be constructed. In this area, additional field reconnaissance will be needed, to locate the trail where construction and long-term maintenance will be easiest, and where we can best meet the objectives of the trail. [The segment from Road 540 to Road 537 is now identified as MT-10 (SHO-02).]

North from U.S. 26 to Barbers Point. New trail construction would be required.

As late as 1998, there were no trails on these segments. (And even if certain portions of the new route from Pelham Lake were negotiable in some form, they may have been rudimentary and not developed to a standard suitable for either national scenic trail use or motorized vehicle use). The segments were not designated in accordance with 36 CFR 212.51, as they were said to be unmapped west of Pelham Lake and in fact do not appear on the Shoshone National Forest Visitors Map for 1990. (We assume that they did not appear on motor vehicle use maps prior to 1998, but we do not have access to them. If they were then designated trails authorized for motor vehicle use, they would have had to have been identified as such on those maps. 36 CFR 212.56.) Lacking designation, they were not Forest trails or roads, though if they existed in some form, as on old logging roads, they would be “unauthorized” trails as defined in 36 CFR 212.1. Motor vehicle use on unauthorized trails was not “allowed by administrative regulations” when the CDNST was designated in 1978 and therefore must not be allowed now.[We understand that the segment between U.S. 26 and Barbers Point has not been designated for motorized use in accordance with 36 CFR 212.51. Its use (for nonmotorized travel only) is outside the scope of the proposed Travel Management Plan and will not be discussed further in this submission.]We turn now to segment SHO-02. We do not have evidence of its designation as a motorized trail. On the contrary, the 1998 decision notice states:In some areas, new trail will be constructed between segments of existing road; these new trails will be built and managed for non-motorized use. In these areas (mostly near Togwotee Pass …) additional field reconnaissance is needed to find the best place for new trail segments….While we plan to manage the Continental Divide Trail for non-motorized uses, we recognize the desire for 4-wheel drive and ATV routes in the same country the trail passes through. We will continue to identify suitable routes and attempt to provide alternatives to the Continental Divide Trail that will meet the needs of those wishing to use ATVs in the Union Pass – Togwotee Pass area…There are not and have never been Forest roads between Pelham Lake and Pilot Knob Road. Between segments of existing road, the new trails were to be built and managed for non-motorized use. Although the Forest Service indicated its desire to provide alternatives to the CDNST for 4-wheel drive and ATV users, the new trail for the SHO-02 segment was clearly intended to be nonmotorized.If this segment was designated for motorized use after 1998, advance notice of such designation would have been required, with opportunity for public comment consistent with NEPA. 36 CFR 212.52(a). We do not recall having received or seen such notice. We would have been interested in reviewing how the responsible official considered effects on the provision of recreational opportunities (1) with the objective of minimizing conflicts between motor vehicle use and existing or proposed recreational uses of National Forest System lands and (2) the prohibition of motor vehicle use in primitive areas. 36 CFR 212.55(b)(3)(e).Based on the information that we have seen, however, segment SHO-02 has not been lawfully designated as a motorized Forest trail and should not appear – as in fact it does -- as trail MT-10 on the 2016 Motor Vehicle Use Map (South Zone side 1).Furthermore, the 1998 route selection EA called for this new trail segment to be constructed with the stated intent to “best meet the objectives of the trail.” As noted above, a purpose of the Trail is to provide high-quality scenic, primitive hiking and horseback riding opportunities. There is nothing primitive about motorized vehicles.The Forest Service’s intent with respect to newly constructed CDNST trail segments such as SHO-02 is directly addressed in a 1997 memo from the Deputy Chief of the Forest Service to Regional Foresters, which declares:It is the intent of the Forest Service that the CDNST will be for non-motorized recreation…. Allowing motorized use on these newly constructed trail segments would substantially interfere[3] with the nature and purpose of the CDNST. Comprehensive Plan II.A.[4].Allowing motorized vehicles on SHO-02 (MT-10) would violate this clear statement of policy and cannot be justified.

B. Required Changes to the Proposed Travel Management Plan Trail MT-10 (SHO-02) should be redesignated as a nonmotorized trail and renamed accordingly. Motorized use of this trail would be prohibited. The proposal to widen Trail MT-10 so as to allow the use of motorized vehicles that are 65 inches wide should be stricken – not only because of the prohibition stated in the previous paragraph, but in addition it would still further conflict with the provision of high-quality scenic, primitive hiking and horseback riding opportunities.The Shoshone National Forest Land Management Plan Recognizes the Need to Reduce the Use of Motorized Vehicles on the CDNST The revised land management plan specifically addresses the CDNST in its section on Management Area 3.6A – Continental Divide National Scenic Trail (pp. 159-162). Some relevant provisions are these:

Theme. The CDNST “is managed to provide recreation opportunities in a natural appearing landscape consistent with the CDNST Comprehensive Plan. [Comment: we agree with this statement of theme. With respect to the landscape, the Comprehensive Plan calls for the Trail to provide high-quality scenic opportunities and the conservation of natural resources along the CDNST corridor.]

Setting. The Trail generally follows the corridor described in the Bureau of Outdoor Recreation’s 1976 Study Report and the 1977 Final Environmental Statement. … On the Shoshone, this was accomplished by establishing the route in a 1998 decision notice and finding of no significant impact (USDA 1998). This decision recognized that the Trail should be managed for pedestrian and horse traffic, but located some segments on existing roads in order to build as little new trails as possible and avoid sensitive wildlife habitat. [Comment: segment SHO-02 was not an “existing road;” pursuant to the 1998 decision notice, it should have been managed for pedestrian and horse traffic.]

Currently, the Trail follows a mixture of non-motorized and motorized primitive roadways. Motorized use is allowed to the extent that occurred in 1998. [Comment: motorized use on SHO-02 did not occur in 1998 – but in any event that is irrelevant since such use could not be authorized unless it was allowed when the CDNST was designated in 1978. The roadways currently used by the CDNST are generally not primitive.]As the Trail is developed further, it is expected that the entire length of the Trail on the Shoshone will be located off roads. [Comment: this conforms to the Comprehensive Plan.]The landscape has a predominantly natural appearance that may have subtle modifications that would be noticed, but not draw the attention of someone traveling through the area. [Comment: the noise and physical impacts of motorized vehicle use would be more than noticeable; they would be objectionable to the solitude-seeking hiker or horseman.]

Desired Conditions. The Trail provides a high quality scenic, primitive hiking and pack and saddle stock experience. A variety of compatible non-motorized opportunities are provided. Access to the Trail is primarily by foot, horseback, or other non-motorized means. Roads and motorized trails are not present except at designated crossings. [Comment: we agree with this statement, particularly that motorized trails are not desired except at designated crossings. Non-motorized opportunities that are “compatible” would be defined in project-specific planning.] …

Concentrations of users are low and opportunities for solitude and exercising outdoor skills are present. [Comment: opportunities for solitude may be limited on SHO-02, but would be enhanced by the prohibition of motorized vehicle use.]

Goals. Relocate the Trail off motorized routes. (MA3.6A-GOAL-02) [Comment: we agree with this goal.]

Standards.

Recreation. Where possible, new or relocated sections of the Trail shall be located within areas mapped with a recreation opportunity spectrum setting of primitive or semi-primitive non-motorized. (MA3.6A-STAND-05). [Comment; we agree with this standard.]

Roads and trails. The Trail will be moved off existing motorized routes, if the motorized use becomes incompatible with management of the Trail. (MA3.6A-STAND-06). [Comment: Not only SHO-02, but on other sections as well, motorized use is incompatible with management in accordance with the nature and purposes of the Trail.]

Management Approach

If existing uses are, or become, incompatible with the nature and purposes of the Trail [in the case of wheeled motorized conflicts], the management approach will generally be to move the Trail route to a location that is non-motorized. … Motorized use by the public on relocated sections of the Trail will generally be prohibited, with the exception of a special circumstance. The Trail will not be relocated onto motorized routes. [Comment: we agree. As noted above, motorized use on SHO-02 and other sections is incompatible; accordingly, those sections should be relocated and closed to motorized vehicles. (The special circumstance provision, as we understand it, applies to emergencies, private owners’ reasonable access rights, and certain crossings, as described in the Comprehensive Plan.)]

If portions of the trail are relocated, the scenery direction for this management area will take precedence over the scenery direction for the mapped management area direction which is overlaid by the Trail corridor. In addition the scenery direction from where the trail was relocated will revert to the mapped management area direction for that location. [Comment: this is an important provision with which we entirely agree.]

To summarize our views with respect to the provisions of the land management plan:

Management of MT-10 (segment SHO-02) and other motorized road or trail sections of the CDNST is incompatible with the nature and purposes of the Trail. [“Substantially interferes with,” we would say.]

The Trail should be moved from motorized routes to locations that are closed to motorized vehicles – if possible to areas mapped with an ROS setting of primitive or semi-primitive non-motorized.

(Relocations will be addressed in project-specific-environmental analysis.)

Scenery directions for relocated sections of the Trail will take precedence over the prior direction for the area overlaid by the CDNST corridor.

On the basis of our review of the information in the Forest land management plan, we believe that we are in agreement with the Forest Service with respect to each of these principles. We are concerned, however, that the land management plan lacks an objective that would set projected dates by which the needed relocations would be accomplished. We consider it essential, at this juncture, that the Forest Service develop and publish a schedule it aims to follow in accomplishing the approved relocations. Only in this way can we be assured that the existing resource concerns will be removed or changed in a timely fashion.Shoshone National Forest Travel Management Planning Should Address Relocation of the CDNST Off Motorized Roads and Trails As Follows From a legal perspective, our opinion is that – as stated above --

Trail MT-10 (SHO-02) needs to be redesignated as a nonmotorized trail, renamed accordingly, and removed from the motor vehicle use map.

Motorized use of this trail must be prohibited.

The proposal to widen Trail MT-10 so as to allow the use of motorized vehicles that are 65 inches wide should be stricken.

More generally, the CDNST should be moved off of motorized roads and trails and relocated in nonmotorized settings (in a primitive or semi-primitive ROS class if possible). [The Forest Service has made available to us a map that depicts certain alternative routes for relocation (one via Togwotee Pass and one via Barbers Point) that appear to be among those that may merit detailed consideration.] Our primary goal at this time is to work with the Forest Service to move forward expeditiously to review alternative route locations, to consider their respective environmental impacts in accordance with NEPA, to select and plan a nonmotorized trail route in recognition of the nature and purposes of the CDNST, to construct the selected trail, and to make it available for appropriate nonmotorized users within a reasonable time frame. During the course of this process, scenery directions for the alternative routes would follow the management direction in the 2009 CDNST Comprehensive Plan (IV.B.4.c.). (The project should address all currently motorized sections within the Forest, from Brooks Lake on the north to Pine Creek on the south.) We suggest that a period of five years should be sufficient to allow all these steps to be undertaken and completed. The scoping notice for this relocation process should be issued before the Forest makes and publishes its decision regarding its travel management plan. We view the interim use of MT-10 as a segment of the CDNST to be in conflict with the National Trails System Act as well as the regulations pertaining to designation of Forest trails. However, so long as the Forest undertakes and conscientiously carries out a program consistent with our proposal, we would not insist upon the closure of MT-10 as the relocation effort moves forward. We do insist, however, that the proposal to change the authorized class of motorized vehicle from 50 inches to 65 inches should be rejected, or authorized only conditionally upon the completion of the relocation of the CDNST. Widening MT-10 at this time would only exacerbate the substantial interference with the nature and purposes of the trail.* * * * We look forward to working with you to resolve these issues during your consideration of the proposed plans for travel management. You can contact us by phone, email, or letter as follows:Continental Divide Trail SocietyJames R. Wolf, Director3704 North Charles Street (#601)Baltimore MD 21218

Design standards for motorized use permit greater changes to the physical setting (width, erosion, ruts, vegetation, wildlife habitats, etc.) than would be observed for nonmotorized use.

The noise and traffic generated by motorized use interfere with the primitive character of the setting and the opportunity for users to enjoy solitude.

Encounters with motorized vehicles (especially at high speeds or in settings with limited visibility) can give rise to safety concerns to both hikers and equestrian users of the trail.

The additional use of the trail resulting from the presence of motorized vehicle users may be inconsistent with a capacity determination that considers the social capacity factors needed to provide desired recreation experience opportunities. Comprehensive Plan IV.b.9.c.(1)